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2017 DIGILAW 2128 (JHR)

Baij Nath Seth v. State of Jharkhand

2017-12-11

APARESH KUMAR SINGH, B.B.MANGALMURTI

body2017
ORDER : Heard learned counsel for the parties. 2. The petitioners impugned advertisement dated 1st November, 2004 issued by the Jharkhand Public Service Commission (JPSC) for appointment to the post of Deputy Registrar, Assistant Registrar and Controller of Examination through direct recruitment contending that it is against the statutes relating to ‘General Conditions of Service of Employees of Ranchi University’ as approved by the Chancellor being letter no.5270 GS(I) dated 18th November, 1980. They had also sought quashing of the advertisement notice dated 18th December, 2004 for holding interview on 28th, 29th and 30th December, 2004. They also sought a direction upon the respondents to fill up these posts through promotion after considering the case of the petitioners as per the prevalent statute dated 18th November, 1980 and restraint upon the respondents from acting in pursuance of any other proposed statute or so-called statute not framed in accordance with law as per the provisions of the Jharkhand State Universities Act, 2000. They sought restraint upon the respondent-Commission from undertaking interview. Initially the Statute for Qualification and Pay Scale for the Post of Officers to be filled up by the University by direct recruitment as notified by letter no 624 dated 18th May, 2004 was not under-challenge, though the impugned advertisement was issued under the said statute. The prayer of the petitioners to challenge the statute of 2004 was allowed only on 29th January, 2015. In the meantime, they had also sought challenge to the appointment of the private respondents who were appointed pursuant to the impugned advertisement vide notification dated 31st March, 2005. Such an amendment was allowed by an order dated 2nd July, 2012. 3. As per the case of the petitioners, petitioner no.1 was serving under the respondent-University since 1981 and had been promoted to the post of Estate Officer. Petitioner No. 2 was appointed as Welfare Officer in the year 1981 and had been in service all along on the said post since his appointment. Petitioner No. 3 was appointed as a Statistical Assistant on 1st April, 1983 and had thereafter been promoted in 1989 to the post of Office Superintendent on which post he was continuing at the time of filing of this writ petition. Petitioners No. 1 and 2 contended that they deserved to be promoted on the post of Deputy Registrar while petitioner no. Petitioners No. 1 and 2 contended that they deserved to be promoted on the post of Deputy Registrar while petitioner no. 3 contended that he deserved to be promoted to the post of Assistant Registrar in the respondent-University. According to them, the statute dated 18th November, 1980 was framed under the Bihar State Universities Act, 1976 as notified by the Chancellor which made provisions for appointment to the post of officers of the University. As per Clause-3 sub-clause (5) in respect of officers other than Registrar, Inspector of Colleges and Finance Officer, who were to be appointed through open advertisement, the Vice-Chancellor was to seek approval of the Chancellor to decide whether other pasts were to be filled up by promotion or by direct recruitment. 4. According to the petitioners, the past of Deputy Registrar, Assistant Registrar and Controller of Examination had been filled up earlier by promotion, though appointment on the post of Registrar had been made directly either by the Chancellor or by the recommendation of the University Service Commission. Instances of one or the other persons have been cited. Petitioners felt aggrieved by the advertisement no.2/2004 inviting applications for direct recruitment to the post of Controller of Examination, Deputy Registrar and Assistant Registrar under University through the respondent-Commission. According to them, one post of Controller of Examination, three posts of Deputy Registrar and five posts of Assistant Registrar were notified and the last date for submission of the application was 24th November, 2004. 5. The statement whether petitioners had participated under the impugned advertisement is conspicuous by its absence in the averments made in the writ petition. Petitioners have contended that the impugned exercise has been held without consultation with the petitioners or their association in violation of the rules of natural justice. They further contended that the statute has not been notified in the State Government Gazette, though they have been notified by the Chancellor's Secretariat. Framing of the statute has been questioned by the learned Senior Counsel representing the petitioners as being in teeth of the statutory provisions under the Universities Act. The impugned exercise intended to fill-up the post of Deputy Registrar, Assistant Registrar and other post by direct recruitment is completely arbitrary, illegal and unconstitutional. 6. Framing of the statute has been questioned by the learned Senior Counsel representing the petitioners as being in teeth of the statutory provisions under the Universities Act. The impugned exercise intended to fill-up the post of Deputy Registrar, Assistant Registrar and other post by direct recruitment is completely arbitrary, illegal and unconstitutional. 6. The appointment to the post of Deputy Registrar and Assistant Registrar of the private respondents through notification dated 31st March, 2005 have been challenged by the petitioners through subsequent amendments which have been allowed in 2012 only. The private respondents have also entered appearance on notice. 7. The contention of the petitioners relating to the framing of the statute have been specifically answered by the respondent-University through its affidavit filed on 17th January, 2005. According to the University, the advertisement originally impugned in the writ petition dated 1st November, 2004 was issued by the Jharkhand Public Service Commission in accordance with the Statute for Qualification and Pay Scale for the Post of Officers to be filled by the University by direct recruitment through all India advertisement as approved by the Chancellor on 10th May, 2004 and communicated by the Principal Secretary to the Chancellor vide letter dated 11th May, 2004. It was forwarded by the Director, Higher Education, Human Resources Development Department to the Registrar, Ranchi University through letter dated 18th May, 2004. The Jharkhand State Universities Act, 2000 is an adaptation of the Bihar State Universities Act, 1976. Section 57 of the Act lays down procedure for appointment of teachers and officers. The posts advertised for recruitment are in the category of 'Officers'. 8. Learned counsel for the University has specifically relied upon the provisions of Section 36(6) of the Act of 2000 which inter alia provides as under:- "36(6). Notwithstanding anything contained in the above clauses, if at any time when the Senate is not in session and the Chancellor is satisfied that it is necessary to frame Statutes on any subject, the Chancellor after obtaining the advice of the Department of Higher Education, Government of Jharkhand shall send the draft Statutes for opinion to the Syndicate of the University and it shall be binding on the Vice-Chancellor to convene a meeting of the Syndicate for consideration of the drafts statutes within 10 days of receipt of the said draft. The Chancellor shall then give his assents to the Statutes with such amendments as may deem necessary in the light of the opinion of the Syndicate. The Statutes shall be deemed to have come into force in the University from the date of assent. Statutes framed in this manner shall be placed before the next meeting of the Senate for confirmation:" 9. According to the respondent-University when the Senate is not in session and the Chancellor is satisfied of the necessity to frame Statutes, it may send the draft Statutes for opinion to the Syndicate of the University. The Vice-Chancellor is duty bound to convene a meeting of the Syndicate for consideration of the drafts statutes within the time stipulated and thereafter the Chancellor shall give his assents to the Statutes with such amendments as may be deemed necessary in the light of the opinion of the Syndicate. The Statutes are thereafter deemed to have come into force in the University from the date of assent. In the instant case advice of Higher Education Department was taken by the Chancellor and draft statutes were framed and were sent to the University. They were placed before the Syndicate which considered the same and sent its opinion to the Chancellor under the provisions of Section 36(6). The assent of the Chancellor was granted on 10th May, 2004. That is how the statute in question was framed and is the basis for issuance of the impugned advertisement. The respondent-University sent its requisition to the JPSC on 26th May, 2004 whereafter impugned advertisement Annexure-4 to the writ petition was issued. The candidates had been interviewed on 28th, 29th and 30th December, 2004. In the intervening period, the writ petition was filed. 10. Learned counsel for the respondents specifically' contended that on coming into force of the statute on 10th May, 2004, the statute dated 18th November 1980 lost its force. According to the respondents-University, the Senate confirmed the statute vide Agenda No.12 dated 5th April, 2005 -and the Vice-Chancellor was authorised for implementation of the Statute. They are enclosed as Annexure-C to the supplementary counter-affidavit. Break-up of the post has also been provided at paragraph-10 of the supplementary counter-affidavit. Some of the posts were earmarked to Vinoba Bhave University as per the direction of the Human Resources Development Department. They are enclosed as Annexure-C to the supplementary counter-affidavit. Break-up of the post has also been provided at paragraph-10 of the supplementary counter-affidavit. Some of the posts were earmarked to Vinoba Bhave University as per the direction of the Human Resources Development Department. The respondent further contended that there has been no violation of reservation policy as they have followed the roster position. According to the respondent-University as well as the private respondents, petitioner nos. 1 and 2 had applied for appointment to the post of Deputy Registrar and have also appeared as candidates. Having been not found to be suitable for the post, they are stopped in law from challenging the selection process. Reliance has been placed on the judgment rendered by the Hon'ble Supreme Court of India reported in 1986(Suppl.) SCC 285, (1995)3 SCC 486 , (2002)6 SCC 127 and (2003) 9 SCC 401 . 11. The private respondents in a separate affidavit have also seriously contested the claim of the petitioners both on facts and in law. According to them, the impugned exercise was held under a valid statute framed by the Chancellor of the Universities in accordance with the provision of Section 36(6) of the Act. The Senate had also later on confirmed it. According to the respondents, the challenge to the same advertisement earlier has been repealed by the Division Bench of this Court in W.P.(C) No. 2251 of 2005 on the ground that the petitioner had availed the chance of appearing in the examination and after having declared unsuccessful, was not justified in raising the issue relating to appointment under the same advertisement. The order dated 31st January, 2006 is Annexure-D to the counter-affidavit of respondent nos. 8, 10, 11 and 12. The instant fact does not stand refuted by the petitioners either. 12. Learned counsel for the Respondents-Commission has submitted that the appointments have been made in the year 2005 and thereafter one or the other. appointment exercises to such posts in different Universities have also been held by the Commission. The petitioners are therefore precluded from laying challenge to the recruitment exercise at this stage when originally the statute under which the impugned advertisement was issued, was itself not under challenge. 13. We have considered the submissions of the learned counsel for the parties and gone through the relevant materials on record. 14. The petitioners are therefore precluded from laying challenge to the recruitment exercise at this stage when originally the statute under which the impugned advertisement was issued, was itself not under challenge. 13. We have considered the submissions of the learned counsel for the parties and gone through the relevant materials on record. 14. The aforesaid factual matrix of the case in summary discloses that the petitioners, at least petitioner nos. 1 and 2 were parties to the recruitment exercise and have challenged the advertisement under which they participated and ultimately did not succeed. Though their main challenge is based upon the framing of the statute, but the statute itself was not in challenge in the initial stage. Such amendment has been incorporated only in 2015. From the stand of the University it further appears that the Hon'ble Chancellor, in exercise of the powers under Section 36(6) of the Universities Act, 2000, framed the statute vide notification dated 10th May, 2004. Petitioners in their wisdom later on challenged the appointment of direct recruits to the post of Deputy Registrar and Assistant Registrar. The challenge to the appointment of direct recruits to the post of Assistant Registrar and Deputy Registrar was allowed only in the year 2012. As a result, rights which have accrued in favour of the private respondents over a period of time have also crystalized and got vested. It further appears from the supplementary affidavit of the petitioners dated 1st December, 2017 that the University has amended the statute by notification dated 18th December, 2015 (Annexure-12) and recruitment to the post of Assistant Registrar, Deputy Registrar and other officers covered thereunder are to be made both by direct recruitment and promotion in the ratio of 50% as per Clause 2(f). 15. Considered in totality and also in view of the decision of a Coordinate Bench of this Court rendered in W.P.(C) No. 2251/2005 dated 31st January, 2006, we are of the view that the belated challenge to the impugned statute on the basis of which the recruitment exercise has been held under the advertisement no. 2/2004 by Commission does not deserve to be interfered with at this stage. Respondents are justified in relying upon the decision rendered by the Apex Court on the point that a candidate after having participated in the recruitment exercise is stopped from challenging the process of appointment. 2/2004 by Commission does not deserve to be interfered with at this stage. Respondents are justified in relying upon the decision rendered by the Apex Court on the point that a candidate after having participated in the recruitment exercise is stopped from challenging the process of appointment. Reference may be made to the judgments rendered by the Apex Court reported in (1995)3 SCC 486 and (2002)6 SCC 127 . Paragraph-9 of the judgment reported in (1995)3 SCC 486 is quoted as under:- "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared, at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner." Paragraphs 32 and 34 of the judgment reported in (2002)6 SCC 127 are also quoted hereunder:- "32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status-the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhavan pertaining to the doctrine of estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla vs. Akhilesh Kumar Shukla a three-Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise. 34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not "palatable" to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process." 16. In the totality of the facts and circumstances, we therefore do not find any merit in the instant writ petition. Accordingly it is dismissed.